Will there be any full-time UK Patents Court judges in the UPC?

If no UK patents judges will be in the UPC, 
this paves the way for Judge Merpel, presiding....

Like any Kat, Merpel is attuned to the slightest rustle or disturbance in the patent force.  Her whiskers have been twitching of late as she can sense some disturbance about the future membership of the judges of the Unified Patent Court.  On Friday, the Preparatory Committee announced that the UPC judicial recruitment package had been agreed with the advertisements to be published in May (click here for the announcement).  The identity and experience of the UPC judges are a key piece in the UPC framework and future success of the system.  Several months ago, Merpel assumed that the various Ministries of Justice from across Europe would be issuing decrees to their experienced patent judges to apply for the UPC posts.  To make the system a proper success, full-time experienced patent judges are what is needed, at least in the all-important initial years when procedural case law is established.

The question that has yet to be answered, as far as Merpel understands, is whether the UK's Ministry of Justice will permit the current Patents Court judges to be seconded full time to the UPC for a couple of years.  Apparently, the answer is not forthcoming or as straightforward as it is hoped.  Whatever the status or reasons, such a result would be that without the benefit of the UK's experienced full-time patent judges, the UPC will be weakened.

Europe benefits from a collection of experienced and highly qualified patent judges.  The UK's patent judges are some of the most experienced, deciding a wide range of cases -  from the complex, high-value patent disputes between the world's Goliaths in the Patents Court, to efficiently managing smaller patent cases between SMEs in the Intellectual Property and Enterprise Court (IPEC), where the case is front-loaded, evidence limited and time to trial generally shorter.  If IPEC sounds curiously similar to the procedure envisaged by the UPC Agreement and Rules of Procedure, that is no coincidence.  In 2009, the Working Party of the IP Court Users' Committee was tasked with proposing a new procedure for IPEC (or the PCC, as it then was).  The procedure was modelled after what was hoped the procedure would inevitably look like in the UPC.  Fast-forward to 2016 and, with the help of some talented judges, the IPEC has become an acclaimed success in providing litigants with a forum whereby they can obtain high quality patent decisions in an efficient and cost-effective court.  Also the aims of the UPC...

Given their experience, it is no surprise that the UK's patent judges are kept very busy.  In 2014, there were 72 European and UK patent cases commenced in the Patents Court and IPEC concerning 106 patents.  If adopting German approach to counting cases (where each claim and counterclaim for infringement or revocation is counted), then the number rockets to 103 cases concerning European Patents.  You can read more about these statistics in the UK IPO's recently published report here.

It would be misfortunate to squander this available experience, especially in the critical early days of the UPC.  The success of the UPC will be determined by the quality of its decisions and, thus, the experience of its judges.  Without experienced judges from one of Europe's widely recognised and frequently used patent jurisdictions, the strength and attraction of the UPC as a competitive venue for European patent litigation will be depleted.  A subsidiary issue is that, without the participation of the UK's Patents Court judges, the attraction for litigants to use the UK's local division to commence patent infringement actions would also be weakened (thus curtailing the positive benefit to UK's economy).  Such a state of affairs seems completely nonsensical given how hard the UK Government fought to secure a seat of the Central Division in London for exactly the same reasons (i.e., beneficial to the UK economy, key role in the stake and success of the UPC, etc etc etc).

Merpel hopes that whatever the current position or perceived reluctance from the UK, it will be short-lived.  It is vital, especially in the current climate, that the UK plays a vital role in helping to shape the future European patent litigation and innovation.